Effective December 1, 2015

Author: John C. Mitby

The Federal Rules of Civil Procedure were approved by the United States Supreme Court on April 29, 2015. The new rules will take effect December 1, 2015, unless Congress makes a change.

The major changes, which focus on discovery, are:

1. Limiting the scope of discovery to information relevant to the claims and defenses and eliminating the provision allowing for discovery of information “that may lead to the discovery of admissible evidence.”
2. A focus on a balancing test that can impact the scope of discovery.
3. A provision focusing on shifting discovery expenses through protective orders.
4. Objections to requests for production must state whether any documents are being withheld due to the objection.
5. Changes to the rules regarding preservation and destruction of relevant electronically stored information.
6. A 30-day reduction in the time to serve a summons after filing.
7. A 30-day reduction in the time for courts to enter scheduling orders.

There are also other changes including the scope of discovery.

The key revision to Rule 26 striking the language permitting discovery of documents or information that “may lead to the discovery of admissible evidence” and instead defining the scope of discovery as being “any nonprivileged matter that is relevant to any party’s claim or defense” is perhaps the major change to consider if litigating in Federal Court.

Further, the new rules incorporate a proportionality requirement directly into the definition of discoverable material. Discovery must be:

proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.

The new rules in employment cases might pose a unique situation where only one side has a large volume of documents. How will the court handle this and who pays the costs?

The new rules will change the landscape and one will have to understand just how “your” judge or magistrate will interpret the new rules. One needs to carefully review the rules; plus it is best to meet and confer and openly discuss just what is it you need to represent your client keeping the elements of cost in mind.